Attorney Profile - Texas Criminal Defense Lawyer
Criminal Law Frequently Asked Questions
What is the difference between criminal law and civil law?
Civil law suits are private suits between two or more citizens. Civil law is the area of law by which private individuals resolve their differences with the help of the civil courts. Criminal law involves an action initiated by the federal government or a state against a citizen or a business. The criminal laws of the federal government and all individual states are codified into statutes. When an individual allegedly violates a law, as listed in the statutes, then the federal government or a state can prosecute the individual. The remedies available in civil courts are generally limited to money damages. The remedies in criminal court may involve a money fine and/or a jail or prison sentence.
[ Back to Top ]
Can some activities be both a criminal offense and a civil offense?
Yes. For example, if a person decides to walk up and hit another person and causes injuries to that person, the person initiating the contact may be found guilty of assault in a criminal court and liable for battery in a civil court.
[ Back to Top ]
Can force be used to arrest me?
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.
[ Back to Top ]
What happens if I am arrested?
If you are arrested for breaking a criminal law, the case is taken before a "magistrate" who will determine if there is probable cause to detain you and set bond for appearance in court. A court hearing usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. In Harris County, the initial appearance is typically held before the judge of the court where your case has been filed. In other counties, the initial appearance may be held before a Justice of the Peace. During the initial appearance you will be formally told what offense you are charged with, told your constitutional rights, and of the possible penalties.
[ Back to Top ]
Am I entitled to a bond?
The general rule, and provided for in both our federal and state constitutions is that all persons are entitled to "reasonable bail" while their case is pending. Bond may be denied only if there are no set of circumstances that will reasonably ensure a Defendant's appearance in Court and will reasonably protect the community during the pendency of a case in Court. One rare circumstance where denial of bond has been upheld is in capital murder cases where a guilty verdict can result in imposition of the death penalty. Additionally, federal law creates a rebuttable presumption that no conditions of bond can reasonably ensure a Defendant's appearance in Court if the Defendant is charged with a federal drug crime with a minimum punishment of ten years or more. In the vast majority of cases, however, bond will be set. An unreasonably high bond can be challenged in a higher Court.
[ Back to Top ]
How is the amount of the bond determined?
The amount of the bond is determined by a magistrate (judge) who looks at several factors. Under the Constitution, the purpose of a bond is not to punish an individual, but to insure their appearance in Court. The amount of the bond should therefore be set no higher than necessary to insure the person charged will appear in Court. Factors that are considered in setting a bond include:
- the seriousness of the offense charged;
- the criminal history of the offense charged;
- the available resources of the person charged;
- the charged person's ties to the community where the charge is pending.
[ Back to Top ]
How do I make a bond in state court?
If you are arrested and a bond is set, you may either post a cash bond or go to a bondsman who will charge you, in most cases, a bond "premium" equal to 10% of the face amount of the bond to post a bond for you. This type of bind is called a "surety bond". If you post a cash bond, you will receive all the money back after your case is over, whether you are found guilty or not guilty. If you post a surety bond, you will not receive any funds back, as the 10% premium you pay is the cost for having someone else make a bond for you. In addition to the bond premium, you may also be required to pledge property owned by you to protect the bondsman in the event you do not show up in Court.
[ Back to Top ]
How do I make a bond in federal court?
In federal Court, typically you will be able to post the bond yourself by posting 10% or less of the face amount of the bond into the registry of the Court. With the exception of drug crimes, it is also not uncommon to release a Defendant without requiring any deposit, as long as the individual, and at least one other individual related to them, guarantee their appearance in Court. Surety bonds are also an option, although rarely used.
[ Back to Top ]
Can I answer not guilty even if I am guilty?
Absolutely. While you may be "factually" guilty, you are not "legally" guilty unless the government can prove your guilt "beyond a reasonable doubt" based on available and admissible evidence. Pleading "not guilty" when you are "guilty" is not a crime, it is simply telling the Court you are exercising your constitutional right to force the government to prove your guilt beyond a reasonable doubt.
[ Back to Top ]
What is a plea bargain?
A plea bargain occurs when the government and a defendant agree to a proposed punishment for a criminal case without a trial. The plea bargain still has to be approved by the Court, but usually is. A plea bargain may consist of a plea of "guilty", or a plea of "no contest". In both cases, upon entry of the plea, the Court will find you "guilty". A case can be settled at several points during the process of bringing a case to trial, from before it is indicted all the way to during a trial. Sometimes, the best plea bargain can be obtained earlier in a case before the prosecution expends significant resources preparing a case for trial. In other cases, the best plea bargain is obtained later in the process, after the State realizes the potential problems they face in proving their case. The best criminal defense attorneys do not involve themselves in cases with the idea of getting the best "plea bargain" for their client, but rather with an eye toward getting a case dismissed. For this reason, it is not recommended that you hire any attorney who represents to you that you are hiring him to get the best plea bargain. Plea bargains should be considered only after the attorney has evaluated the potential for getting a case dismissed or prevailing at trial, but the possibilities of a plea bargain beneficial to a defendant should also not be put off because of pride or inattention.
[ Back to Top ]
How is my punishment determined if I am convicted in state court?
Texas is one of fewer than five states where a person convicted of a crime has the right to have a jury determine their sentence. Indeed, for some crimes in the State of Texas, only a jury is allowed to recommend probation after a trial. If there is a plea bargain agreement, or a plea of guilty or "no contest" is entered without a plea bargain agreement, punishment is assessed by the Court. The "range of punishment" for a particular offense is determined by statute and varies, depending on the crime.
[ Back to Top ]
How do I get probation?
Any individual is "eligible" for probation as long as the crime with which they are charged has a minimum punishment of less than ten years, and who has never before been convicted of a felony offense. To apply for probation, an individual most file a sworn motion for probation seeking probation and disclosing any prior felony convictions. A judge may give probation even with a prior felony conviction (assuming it is not an offense only a jury can give probation for), however a juror may not grant probation for any individual with prior felony convictions.
[ Back to Top ]
What is "deferred adjudication"?
There are two types of probation available to a Court for most crimes. One is Deferred Adjudication, where a Defendant enters a plea of guilty or "no contest", but the judge does not find the person guilty, rather placing the person on probation for a period of time. If the person successfully completes the probation, the case is dismissed and the person, after a waiting period of several years, can have the record of his prosecution "sealed". Deferred adjudication is not available after a trial on the merits, however, and if a person on deferred adjudication violates the terms of their probation, they can be sentenced anywhere within the entire range of punishment for the crime they are convicted of. This differs from "traditional" probation, where the judge finds a person guilty of the crime with which they are charged after a plea of guilty or no contest, sentences them to a period of incarceration, but then "suspends" the imposition of the sentence and places the person on probation. If the period of probation is successfully completed, the case is dismissed, but the conviction, although not "final", will stay on the person's criminal record forever. If the person violates the terms of their probation, the Judge can impose the original sentence, or impose a lesser sentence within the punishment range for the offense the person was convicted of.
[ Back to Top ]
How is my punishment determined if I am convicted in Federal Court?
In federal court, all punishment is determined by the judge of the court, not a jury (except in death penalty cases). Furthermore, the punishment is assessed by the Court based on a "Sentencing Guideline" calculation set forth in a report prepared in each case by the United States Probation Department. The sentencing guideline "range" is based on a determination of specific "offense characteristics" and an assessment of a Defendant's criminal history. After the appropriate guideline range is calculated, the judge, except in rare cases, is limited to punishing a Defendant to a place within the "guideline range". Therefore, in federal court, plea bargains are most commonly limited to agreement being reached on the offense the Defendant will be convicted of, not a specific sentence.
[ Back to Top ]
What is the Fourth Amendment?
The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states: The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
[ Back to Top ]
Does the Fourth Amendment protect all searches?
No. Before a court will even entertain the possibility that the search in question was unreasonable, the person being searched must have had a legitimate expectation of privacy. To determine whether the defendant had a legitimate expectation of privacy the courts will look at the following factors: (1) did the person subjectively or actually expect some degree of privacy; and, (2) is the person's expectation objectively reasonable, that is, one that society is willing to recognize.
EXAMPLE #1
The police install a hidden video camera in the shower area of a local fitness club. The shower areas are hidden from public view and are enclosed by a curtain. Most people who use the shower in their fitness club have a subjective expectation of privacy. Privacy in a shower area is an expectation that society is willing to recognize. Therefore, the installation of a hidden camera by the police in a fitness club's shower area will be considered a search and subject to the Fourth Amendment's requirement of reasonableness.
EXAMPLE #2
While John is making a telephone call in a glass enclosed phone booth; he places a bag of cocaine on top of the phone. A police officer walking by notices the bag and arrests John for possession of a controlled substance. At trial, John tries to argue that the search of the phone booth was unreasonable because the officer lacked a warrant. This argument will fail because the court will never even get to the reasonableness of the search. When police find a bag of cocaine on the top of a phone in a phone booth, it is not a search for Fourth Amendment purposes. It is very unlikely that John would think that a public phone booth is a private place, and even if John did, society is not willing to extend the protections of privacy to public pay phones.
[ Back to Top ]
What is a search warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be legally issued, there must be a sworn affidavit showing probable cause to believe there is evidence of a crime contained at the location to be searched, and the location itself must be described in great detail. If the search warrant affidavit is not legally sufficient, even if evidence of a crime is found at the location searched, the evidence will be suppressed and deemed inadmissible at trial.
[ Back to Top ]
What is probable cause?
This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn't probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officer's hunch, with nothing more, will not satisfy the requirements.
[ Back to Top ]
If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence.
[ Back to Top ]
What if I agree to the search?
If you voluntarily consent to a search of your home, automobile, or person, then the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court. As such, unless you are positive there is no evidence of a crime at the location to be searched, you should never consent to a voluntary search.
[ Back to Top ]
If I am arrested, can the officer search me or my property?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person, but cannot search your entire home without a warrant. If you are arrested in your vehicle and there is nobody to take your vehicle to your home, the police are also allowed to do an "inventory" search of your car to determine what property you have in it before it is released to a tow truck operator. Unfortunately, the "inventory" searches often result in the discovery of contraband or other evidence of a crime. Because the search is authorized by law to protect the property interests of the person arrested however, the evidence seized is typically found admissible.
[ Back to Top ]
What is the Fifth Amendment?
The Fifth Amendment protects many things, but the most commonly known is the right not to be compelled to give evidence against oneself in a criminal prosecution. As important as the right to remain silent is the fact that one's failure to speak cannot be used against them in a criminal prosecution.
[ Back to Top ]
What is a Miranda warning?
A Miranda warning advises people of their constitutional right (afforded by the Fifth Amendment) not to answer questions if they are under arrest, to have an attorney present before and during any questioning, and advising such person that anything they say can, and probably will, be used against them in the trial of their case.
[ Back to Top ]
If I am not under arrest, do I have to answer a police officer's questions?
No. Indeed, unless you are being detained after having been viewed committing a criminal offense (including a traffic offense) you are free to leave at any time and not answer any questions at all. However, if a police officer asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual, and there is a statute making it a crime in the State of Texas to fail to identify yourself to a police officer. Beyond identifying yourself, you have no obligation to talk or provide any information to an officer.
[ Back to Top ]
Must a police officer always advise me of my Miranda rights before asking a question?
No. The Miranda warning is only in effect during "custodial" questioning. This means that the person being questioned is in either in police custody or in an environment in which the person reasonably believes that he is not free to leave. However, questioning during a traffic stop, or after a traffic accident, before an officer has made you the focus of a criminal investigation (i.e. before he determines he believes you to be intoxicated, but after he observes you driving erratically), may not implicate Miranda, even if you are not free to leave.
Example 1: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have seen the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary's statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to.
Example 2: Officer Jones is drives up on traffic accident. Officer Jones then walks up to Joe and John, who are standing next to the car, using a cell phone, and asks Joe who was driving the car. Joe says he was, and is subsequently arrested for drunk driving after the officer determines him to be intoxicated. Can Joe's statement that he was driving be used against him later, even though he was not read his Miranda Warning? Again, the answer is likely yes, unless he can show he was already the focus of a criminal investigation at the time the question was asked.
[ Back to Top ]
If I am in custody, how do I assert my right to remain silent?
A suspect who has been arrested need only say he wants to speak with an attorney or state he has nothing to say to invoke his or her Fifth Amendment rights against self incrimination. If the police continue to question the suspect after his Fifth Amendment rights have been invoked, the police have violated the suspect's Constitutional rights and anything the suspect says after the violation is inadmissible as evidence in court.
[ Back to Top ]
Can I waive my Miranda rights?
Yes. If you have been arrested, you have been given your Miranda warnings, and voluntarily provide information thereafter to the police, then anything that you say can arguably be used against you in court. In the state of Texas, however, before a statement you make can be used against you for anything other than rebuttal of something different you say at trial, there is additionally the requirement that statements you make be either recorded or written and signed, and additionally that a waiver of Miranda rights be contained either on the written statement, or verbally waived on tape.
[ Back to Top ]
Can I be prosecuted if the police have violated my Miranda rights?
Yes. While what you say may not be used against you if your Miranda rights are violated, it does not prevent the government from prosecuting you based on evidence obtained from other sources. However, any evidence obtained as a direct result of a statement obtained in violation of Miranda rights, will likewise be excluded from the evidence admissible at trial.
[ Back to Top ]
Can I be arrested for questioning?
No. Police can request you to accompany them to a police station for questioning, but you are not required to go unless you have been arrested for an offense. If you believe you are suspected of a crime, it is not advisable to speak with the police until you have first spoken with your attorney, regardless if you are guilty are not. You should ask for a lawyer or independent witness to be present during questioning.
[ Back to Top ]
